Moore v. Anderson, 72-1783.
| Decision Date | 16 March 1973 |
| Docket Number | No. 72-1783.,72-1783. |
| Citation | 474 F.2d 1118 |
| Parties | Elvin Emmett MOORE, Petitioner-Appellant, v. Park J. ANDERSON, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Leonard E. Davies, Denver, Colo., for petitioner-appellant.
Paul Crowe, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen. of Oklahoma, on the brief), for respondent-appellee.
Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge.
Appellant seeks reversal of a judgment of the United States District Court for the Western District of Oklahoma where he filed a petition pursuant to 28 U.S.C. § 2254, alleging that his pleas of guilty to charges of assault and battery with a deadly weapon with intent to kill and escape from confinement other than penitentiary were not voluntary and therefore void. The state court remedies of petitioner have been exhausted, appellant having pursued post conviction remedies through the state courts. The district court denied the petition on the basis of the moving papers holding: "The generalities, conclusions, and other allegations of petitioner which are contradicted by the records of the trial court are insufficient to entitle petitioner to an evidentiary hearing." We affirm.
Appellant's main contention is that the record in the state court was so inadequate as to constitute a violation of his due process rights under the Fourteenth Amendment because the record does not disclose, according to him, that he was informed of his constitutional rights before entering his plea.
This is another case in which written questions were submitted and answers were inserted in blank spaces presumably by the court or the clerk. The completed form is signed by the district attorney, the attorney for the defendant, by the defendant, by state district judge, the court reporter and court clerk. The court propounds the questions. This form is essentially the same as that which was used in Beavers v. Anderson, 474 F.2d 1114, a decision announced this day. Unlike the Beavers case, wherein particular allegations were made as to the coercion practiced, the petition at bar simply alleges that the plea was not voluntary and that there was not a sufficiently full explanation as to the defendant's right to a trial by jury and his right to counsel and "the possibility of the penalty provided by statute for the offense charged." The petition also stated that "the defendant at the time of his plea of guilt was under heavy mental strain as well as under strain and influence of threats before plea." The defendant was obviously warned as to the maximum penalty provided by law and as to the consequences of a plea of guilty. He was also told of his right to have a jury trial and stated that he did not wish to have one. He further stated that he had discussed the charges with his lawyer and understood his rights and that his lawyer had advised him in the matter. Based upon this and other questions which were propounded to him, he entered pleas of guilty to both charges and was sentenced. He was in fact represented by counsel and he nevertheless complains that the judge failed to advise him fully of his right to counsel.
As in the Beavers case, counsel argues that the written form by itself violates the Constitution. We disagree. We have carefully read Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which is relied on by the appellant, and that case does not hold that Rule 11 together with its implementing federal decisions is lock, stock and barrel applicable to state court proceedings. Undoubtedly the accused is entitled to have the judge address him personally on the occasion of his arraignment and he is entitled to know of his right to a jury trial, and if he attempts to enter a plea of guilty he is entitled to know the consequences of his plea, and the judge must satisfy himself that the plea is being given voluntarily and with knowledge of its consequences. The questions and answers here are sufficient to satisfy these...
To continue reading
Request your trial
-
State v. Billups
...522 S.W.2d 483; Williams v. State (1975), 263 Ind. 165, 325 N.E.2d 827; United States v. Sherman, supra ; Moore v. Anderson (C.A.10, 1973), 474 F.2d 1118. In McCarthy v. United States (1969), 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, the Supreme Court construed the provisions of F.R.Crim......
-
UNITED STATES EX REL. SUGGS v. La Vallee
...Coleman v. Burnett, 155 U.S.App.D.C. 302, 477 F.2d 1187 (1973); Sieling v. Eyman, 478 F. 2d 211 (9th Cir. 1973); Moore v. Anderson, 474 F.2d 1118 (10th Cir. 1973). While this Circuit has not yet specifically ruled on the question, it has seemingly indicated sympathy with the latter interpre......
-
Cranford v. Rodriguez
...(10th Cir. 1966).4 It is, of course, fundamental that an independent evidentiary hearing need not always be given. See Moore v. Anderson, 474 F.2d 1118 (10th Cir. 1973); Stinson v. Turner, 473 F.2d 913 (10th Cir. 1973); Reynolds v. Rodriguez, 444 F.2d 94 (10th Cir. 1971); Burke v. United St......
-
Cone v. Dutton
...has long held that a summary of facts form alone may be sufficient to establish a knowing and voluntary plea. Moore v. Anderson, 474 F.2d 1118, 1119-20 (10th Cir.1973). The district court did not err to the extent it relied on the summary of facts form in finding that Mr. Cone voluntarily a......